CSIS and the Metadata Muddle Pt 2: On Secret Law, Courts and the Rule of Law

This is the second of a series of blog entries on Noël J’s recent Federal Court judgment on CSIS’s retention of metadata from its warranted threat investigations. In my first entry, I tried to explain what this case is about.

In this blog entry, I begin to explore its implications, as I see them. First up: what a tangled web our legal system has weaved.

Secret Laws

Readers of this blog will know that I have developed an allergy to a commonplace practice in Canadian national security law: secret law.  As I have noted before, Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers.

These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate.

In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand.

Examples I have encountered in my wanderings include:

  • a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE) (either a variation of the issue in play in the Federal Court case, or the very issue at stake – I don’t know);
  • a conclusion that the compilation and analysis of metadata from travellers at a Canadian airport is not (as a legal matter) "acquisition and use" of information in a manner "directed" at Canadians or any person in Canada (CSE);
  • creative theories in the Re X case about CSIS extraterritorial warrants;
  • a conclusion that CSIS’s new Bill C-51 threat reduction powers, done in violation of the Charter, can be constitutional if done pursuant to Federal Court warrant;
  • a conclusion (or at least implication) that somehow, and despite its (admittedly tortured) wording, the new bill C-51 Security of Canada Information Sharing Act is lawful authority effectively trumping the Privacy Act;
  • a conclusion that the exception to the definition of “undermining the security of Canada” in that same Act does not exclude violent protest, advocacy or dissent (a reasonable policy position, but the “violence” qualifier is not in the Act);
  • a conclusion that narrows the textual reading of the bill C-51 “advocacy or promotion of terrorism offences in general” (again, a welcome policy position, but not the way the offence reads).

These are all conclusions that are difficult to view as guided by the law Parliament has enacted.

The CSIS Metadata Case

Enter the CSIS metadata case. As described in my prior post, this case turns on whether retaining “associated data” (that is, non-threat related information) collected in warranted intercepts of communications by targets was lawful.  The Federal Court concluded it was not. And it reasoning on this point is awfully compelling.

Less compelling is the argument offered by the Department of Justice in defending this practice.  And these arguments have knock on implications if they govern the legal advice given in other contexts.

Argument 1: The statutory limitations on CSIS’s intelligence gathering in section 12 are relieved by a Federal Court warrant.

That is, once a Federal Court warrant issues, then Parliament’s constraints on CSIS’s section 12 mandate do not matter any more.

Now, as someone who teaches public and constitutional law, and defends basic constitutional norms of parliamentary supremacy, and contests the delusion that (except in rare instances inapplicable here) the executive has powers beyond those granted by Parliament, this argument struck me as astonishing.  Here, the Justice Department is arguing that, in a secret hearing not subject to appeal in which only it is represented, it may negotiate a warrant with a court having the effect of superseding Parliament’s instructions on the powers CSIS is to have.

Let’s extend the Justice Department’s argument to the powers CSIS has after Bill C-51: it may do anything to reduce broadly defined “threats to the security of Canada” under section 12.1, so long as proportionate to the threat. Under section 12.2, it must not, however, engage in bodily harm, violate sexual integrity or obstruct justice.  In other words, Parliament sets an out limit (albeit a ridiculously undemanding one that we believe needs to be made more robust).

But, under the Justice Department legal reasoning, if CSIS goes to Federal Court and obtains a warrant (as it may do so under s.21.1), these limits could be superseded by the warrant.  And so, under the Justice Department logic, the Federal Court could authorize CSIS to, say, engage in targeted killing (remember, the C-51 changes also say that CSIS may, with Federal Court warrant, violate the Charter).

I have yet to meet the Federal Court judge that would authorize such a thing.  But that is not my point.  My point is that under the Justice Department logic, the basic constraints on CSIS’s powers legislated by Parliament in Bill C-51 can be negotiated out of existence in a secret, one-sided court proceeding, with no appeal.

Fortunately, Justice Noël rejects this Justice Department argument. But it is a bit terrifying it was ever made.

Argument 2: Metadata and the privacy issue. 

In a second argument, the Justice Department seemed to advance the view that metadata do not trigger privacy concerns under the Charter at the collection stage.  Instead, as I follow the discussion, that threshold is crossed when they are amalgamated and searched. 

The court did not resolve this matter, it seems to me. But it is another distressing position with ramifications across government (including in relation to the infamous CSE incidental collection of Canadian metadata in its foreign intelligence and information technology security functions). 

If accepted, this argument allows the accrual of vast pools of metadata, undisciplined by Charter collection rules.  Under Bill C-51’s Security of Canada Information Sharing Act, that information could then start sloshing about government.  At some point, the amalgamation and analysis of it would cross the Charter threshold, even according to the Justice argument.  But what happens then?  Are we to expect that government departments will come to Federal Court proactively seeking a warrant as they run algorithms through these databases?  Absent legislated structures, I don’t see this happening.

So, again, this is another unhelpful legal theory.

Argument 3: CSIS and its lawyers didn’t need to tell the Federal Court about the metadata retention. 

And now we get to the fireworks in this case: the duty of candour issue.  I shall do a separate blog entry on this issue in particular.  But among the other astonishing issues: the government lawyers apparently took the view that they did not need to tell the court how data collected under court warrant was being used, because the court did not have supervisory authority. This is a gobsmacking position, which basically confirms experience with other cases (like Re X): once the warrant walks out the door, the government does as it wills with it.  It is a legal position that court itself discards with some energy: the government legal view reflected a “worrisome lack of understanding”.

And so I can only expect at this point that every single Federal Court warrant will have a “return and report” clause affixed to them.  And the Federal Court will now move in the direction of the US FISA court in terms of auditing performance.

Which is fine, as far as it goes.  But what about all the other doubtful legal positions that never get in front of court – and they are likely legion.

Well, one of the most important aspects of the national security and intelligence committee of parliamentarians anticipated by C-22 is that they will have access to information that is protected by solicitor-client privilege.  If I was in charge, the first thing I’d do: an audit of national security legal opinions, done with the assistance of a small bevy of special advocates.